Separately, Rep. Hunter drafts bill to keep cross in La Jolla

San Diego  The Mount Soledad Memorial Association has taken the first step in appealing a ruling that orders the 59-year-old cross taken down.

The association is appealing U.S. District Court Judge Larry A. Burns self-admitted reluctant ruling last week that held the cross an unconstitutional expression of government endorsement of Christianity because it sits on federal property.

Burns ordered the cross removed within 90 days but stayed that part of his order to give the association and its supporters time to appeal.

Association representatives said Wednesday that the nation’s oldest memorial to Korean War veterans must be stay.

“The association built this Korean War veterans memorial with support from the American Legion close to 60 years ago, and it will continue to fight to preserve it for future generations,” said Bruce Bailey, association president.

The appeal of Burns’ ruling, which came after the 9th U.S. Circuit Court of Appeals overturned an earlier decision he made that the cross could stay, is seen as the next chapter in getting the case before the U.S. Supreme Court. The appeal brings the issue back to the 9th Circuit.

“If we fail to preserve this veterans memorial and the ACLU is successful in tearing down the oldest Korean War veterans memorial in the United States, then so too will be the fate of other veterans memorials like it, including the Canadian Cross of Sacrifice and the Argonne Cross in Arlington Cemetery,” said Hiram Sasser, director of litigation for Liberty Institute, which is the defending the Mount Soledad icon.

The cross and its siting have been contested in the courts and the halls of Congress for years, and there’s no sign that will end soon. In Washington, aides to Rep. Duncan Hunter, R-Alpine, are preparing new legislation that the congressman and cross defender said could render the court case moot.

“Even as the legal case proceeds, a legislative remedy is stil in the cards,” Hunter said. “The legislation being drafted will present a solution to keep the memorial fully intact.”

Hunter spokesman Joe Kasper said the bill will be specific to Mount Soledad.

“It’ll be introduced as soon as possible and put a whole new dimension on this,” Kasper said, declining to be more specific.

A cross opponent, attorney James McElroy, said he expected the appeal and doesn’t believe the 9th Circuit judges will change their stance. And if the U.S. Supreme Court declines to consider the appeal, “then this is over after almost 25 years,” he said.

Sasser said cross proponents will announce in a few days whether they will attempt to bypass the 9th Circuit and get the case directly before the Supreme Court. Filing with the 9th Circuit was required as a first step.

The Supreme Court has previously declined to weigh in on the cross, returning it to lower courts. But when that happened, Justice Samuel Alito called the issue one of “substantial importance” giving proponents hope the nation’s highest court will take the case and deliver an ultimate conclusion.

When Burns made his ruling last Thursday, cross attorneys suggested physical changes that they hoped would keep the 29-foot high structure in place. But Burns said he had little room to maneuver around the 9th Circuit’s ruling of unconstitutionality.

“Deliberate language in the opinion makes it clear that removal of the large, historic cross is the only remedy that the Ninth Circuit conceives will cure the constitutional violation,” he wrote.